In Town of Greece, New York v. Galloway (Town of Greece), the Supreme Court of the United States upheld prayer at a town board meeting, but did not offer much guidance to public agencies such as city councils and school boards regarding the risks of their own current prayer practices. In a 5-4 decision, the Supreme Court ruled that the prayer practice at issue in the case, which included specific religious references, was constitutional and therefore allowable. The case signals a change from the Court’s previous consensus on the issue, which had been that invocations at local government meetings had to be non-denominational. Unfortunately, however, the new ruling leaves many open questions.

The First Amendment’s Establishment Clause prohibits government agencies from promoting or appearing to endorse religion. Yet throughout American history, legislative bodies (including the U.S. Congress) have engaged in prayer, and from time to time constitutional challenges have ensued. The Supreme Court’s last major ruling on legislative prayer came in 1989, when the Court ruled, in County of Allegheny v. American Civil Liberties Union (Allegheny), that legislative prayers are not per se unconstitutional, but that they cannot have the effect of affiliating the government with any one specific faith or belief. Many, including some California courts, have interpreted Allegheny as articulating a bright-line rule, allowing local agencies such as city councils and school boards to engage only in nonsectarian prayer.

In Town of Greece, two residents of Greece, New York brought an action against the town challenging its policy on prayer at town board meetings. The prayers at those meetings regularly contained specific sectarian language and themes. The plaintiffs, one an atheist and the other Jewish, attended those meetings and felt that the prayers violated their religious and philosophical perspectives. They argued that the local nature of the meetings coerced non-adherents to participate in religious activities, because non-adherents would feel obliged to please governing board members from whom they sought a favorable ruling on issues.

In its ruling, the Supreme Court noted that within certain limitations, prayer has historically coexisted with the principle that government should not become involved with religion. The Court further held that the constitutionality of legislative prayer did not turn on its content, meaning that a prayer was not unconstitutional from the outset merely because it made specific religious references.

Where Do Local Prayer Practices Stand In California?
While the establishment provision of the California constitution is similar to that of the federal constitution, the California constitution also contains a “no preference” clause which appears to provide greater restrictions than required by the federal constitution. Therefore, it is unclear whether the holding in Town of Greece would be controlling if a public agency is sued over prayer under the California constitution.Given the Supreme Court’s lack of consensus (the justices were split 5-4 and did not issue a clear majority opinion), and the differences in the California constitution, a public agency which allows prayer at its meetings should seek a legal opinion regarding potential liability.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

After a physician approves an employee’s return from leave under the Family Medical Leave Act (FMLA) (29 U.S.C. § 2601 et seq.) and the employee returns to work, may the employer request a medical reevaluation? In White v. Los Angeles County (April 15, 2014, __ Cal.App.4th __ 2014 WL 1478701), a state court of appeal held that an employer may request a medical reevaluation after the employee has been reinstated to work.

In White, Susan White was employed as an investigator for the Los Angeles County District Attorney’s Office (DA). Ms. White became severely depressed and needed medication for her condition. Around the same time, Ms. White began having sporadic outbursts and exhibited unstable behavior. Ms. White was asked to testify in a case regarding an investigation she had participated in. While on the stand, Ms. White was asked why her testimony differed from other witnesses. In response she angrily yelled, “They are liars!” The defense attorneys called Ms. White to testify a second time and were able to prove that her testimony contained significant factual errors. They subsequently filed a personnel complaint alleging perjury and the filing of false reports. Due to her severe depression, Ms. White requested leave under the FMLA, which the DA approved.

An employee is entitled to reinstatement from FMLA leave upon certification by a medical professional. After an employee returns from FMLA leave, any medical examination must be job-related and for a business necessity. Upon her return to work, the DA placed Ms. White on paid administrative leave in order to conduct an administrative investigation of her allegedly perjured testimony that occurred prior to her FMLA leave. More than four months after her return to work, the DA ordered a medical reevaluation due to Ms. White’s erratic behavior prior to her leave of absence.

The court in White found that Ms. White’s placement on paid administrative leave constituted a return to work. Furthermore, the DA’s post-return medical reevaluation was permissible because “a bright line exists at the employee’s return to work.” The court reasoned that “the FMLA should be interpreted to render the employee’s health care provider’s opinion conclusive on the issue of whether the employee should be immediatelyreturned to work, but to permit the employer to thereafter require a FFDE [fitness for duty examination], if it has a basis to question the employee’s health care provider’s opinion.”

The holding in White is consistent with other employee leave laws. For example, a certificated employee is entitled to reinstatement in the same position held after a leave of absence pursuant to Education Code section 44973. Also, under Education Code sections 49978.1 and 45192, an employee placed on a reemployment list is entitled to return to employment, with certain limitations, if they become medically able within the applicable 24 or 39 month period. Unlike the FMLA, neither of these statutes directly address whether an employer may require a medical evaluation prior to an employee’s return to work. When considering whether to require an evaluation prior to a return to work, courts may deem this decision to be persuasive authority on the issue. It should be noted that collective bargaining agreements may also govern an employee’s rights upon returning to work.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.